ICE Raid: Preparing For And Responding To A Workplace ICE Raid

ICE Worksite Raid Response – Basic Plan and GuidelinesICE Worksite Raid Response – Basic Plan and Guidelines

The Connection Between an I-9 audit and Worksite RaidPrior to worksite raids, ICE agents often investigate and collect evidence that an employer is hiring undocumented workers.

One way they do that is through a Form I-9 Inspection. At any time, ICE may issue a “notice of inspection” to employers requesting that they make their I-9 forms available for inspection. ICE agents or auditors then review the documents, a process known as an I-9 audit. During an I-9 audit, ICE may find discrepancies or suspected false documents. Depending on the results of an audit, the employer can be asked to correct technical or procedural violations or to pay a fine. In some cases, audits may also lead to criminal prosecutions. If ICE agents find many discrepancies in an employer’s I-9 forms, suggesting an employer has hired unauthorized individuals, they may decide to conduct a worksite raid. In some cases, ICE may also have additional evidence, such as witness statements, to support their decision to conduct a worksite raid. ICE must obtain a warrant from a judge to conduct a worksite search for undocumented workers and seize property to use as criminal evidence in the prosecution of these employers.

Site ICE Raid Response Plan — 5 Step Plan

1. Establish Site Raid Response Team – Designate a team and conduct an initial team meeting so that all are aware of roles and responsibilities.  The team should be comprised of a member of human resorces, an attorney, a senior level manager, and an operations lead.

2. Do A Site Inspection and Label Areas “Public” or “Private” In Large Print – Anyone – including ICE agents – can enter public areas of your business without permission. Public areas include a dining area in a restaurant; delivery area where mail and packages are delivered; parking lot; lobby or waiting area.  Being in a public area does NOT give ICE the authority to stop, question, or arrest just anyone.  No one can enter a private area of your business without your permission or a judicial warrant. To show that some areas are private, mark them with a “Private” sign, keep the doors closed or locked, and have a policy that visitors and the public cannot enter those areas without permission which is a badge after they sign a sign in sheet.

3. How To Handle a Raid; What To Do When ICE Arrives – A lot will depend on what type, if any, a warrant the ICE agents have and whether they attempt to enter public or private areas or both.  The first step is to get in contact with the Site Raid Response Team and circulate all documents the agents have presented for access to private workplace areas, such as a warrant, and the employer’s documents (electronic and hard copy). While the agents do not need to wait for counsel or the Team’s permission, it is imperative to understand (with legal advice) what the agents will be looking at, who they may be targeting, and what files (electronic and hard copy) you are to give them access to.  At least two members of the Response Team should be assigned to communicating with the agents, following them and documenting their actions.

For Public Areas.  ICE agents may enter any public area and ask any questions they like, as with anyone else, but there is no requirement that anyone answer the questions, respond in any manner to the agents or submit any documents.  Company employee and representatives may simply ignore them.  However, an ICE agent may enter a public area, such as reception area, with a paperwork including a warrant, that notifies the employer that they have rights to enter the employer’s private areas and review documents of speak to employees.

For Private Areas.  ICE agents can enter a private area ONLY IF they have a judicial warrant. A judicial warrant must be signed by a judge and say “U.S. District Court” or a State Court at the top. Without a judicial warrant, ICE agents need YOUR permission to enter private areas of your business. If ICE agents try to enter a private area, you should say: “This is a private area. You cannot enter without a judicial warrant signed by a judge. Do you have a judicial warrant?” If ICE agents tell you that they have a judicial warrant, ask for a copy and read it. Sometimes, ICE agents try to use an administrative warrant to enter. But an administrative warrant does NOT allow agents to enter private areas without your permission. Administrative warrants are not from a court. They say “Department of Homeland Security” and are on Forms I-200 or I-205.  I-9 audits are an exception, since employers are legally required to make these forms and related documents available for inspection to ICE agents; this is usually done by mail, but sometimes an agent will deliver a Notice of Inspection in person and the Company has three days to respond. Employers, however, are not required to share other information in an employee’s file with ICE agents without a valid warrant or subpoena. In sum, employers do not have to allow ICE agents into a workplace, or allow them access to employee records or databases unless they have a valid warrant signed by a judge that specifies what the Agents are permitted to do/inspect/search. Once Agents enter a private area, they are permitted to do what the warrant specifies, search databases (such as payroll, HRIS, finance, E-verify etc.), speak to certain employees and/or inspect any employee paperwork.  While you must be courteous and respectful to the agents, you do not need to facilitate the raid or their search, other than to provide them with access to the files and private work places so they are able to carry-out a search.  For example, when ICE shows you an administrative warrant with an employee’s name on it, you do NOT have to say if that employee is working on that day or take the ICE agents to the employee named on the warrant (even if he or she is at work at the time).  All the employer is required to do is give them access to the areas specified and/or paperwork, databases indicated.  Do NOT help ICE agents sort people by their immigration status or the country they are from. Watch the agents and see if they are complying with what’s written in the warrant. If you or an employee is willing, you should video or record what the ICE agents do at your workplace.

Best practices for employees during worksite raids — The Company should make information available to employees regarding what to do if ICE agents enter the workplace. Below are key rights and best practices for immigrants when confronted with ICE officials.

  • Everyone in the U.S. has certain rights, regardless of immigration status. You have the right to remain silent.
  • Stay calm, do not run, they are likely to have the exists blocked.
  • Do not sign anything without first speaking with an immigration attorney.
  • Do not carry your “matricula consular” or any other document that identifies you as a citizen of another country.
  • Do carry a valid lawful permanent resident card (“green card”), or other proof of other lawful status, if you have it. Do not carry any documents that were obtained fraudulently or that are not yours.
  • AB 60 driver’s licenses are appropriate to carry and are not proof that you are a noncitizen.
  • Do have a plan in place for you and your family in the event that you are apprehended by ICE.
  • If you are detained by ICE: You have the right to an immigration attorney. You may have the ability to fight your case. To preserve this right, do not sign anything without speaking to an attorney!

4. Conduct Team and Management Training on How To Respond to Raid – In addition to conducting training on Step 3 above, you should train Response Team members and employees who may be approached by ICE Agents (such as security gate personnel, a receptionist, or maintenance workers) on how to handle ICE Agents at the workplace.

  • Stay calm and do not run away.Be respectful and courteous, not adversarial.
  • Remain silent, or tell the ICE agent that you want to remain silent. If you do speak, do not lie.
  • Ask them to speak directly with the Plant Manager, Operations Manager, or an HRBP.
  • Ask to speak with a lawyer and have a lawyer present for all discussion.
  • Do NOT sign any documents or answer questions without your lawyer present.
  • Record details and names of officers.
  • Ask for any paperwork

5. Conduct Follow Up After A Raid

Do a full debriefing of staff to determine the following writing as much down as possible:

  • Whether any employees were arrested.
  • What other contact the arrested employees may have had with ICE.
  • What questions were asked or assertions made by ICE.
  • What answers were given.
  • Which employees or supervisors were discussed.
  • What the detained employee’s history was with the company: who hired him, who completed the I-9, who referred him to the company for hire, what documents were used to complete the I-9, and what discussions took place at the time of hire.
  • Whether the names of any former employees were included in discussions with ICE.
  • How many ICE agents were present (inside and outside)?
  • How were the agents dressed?
  • How were they armed?
  • Did the agents make you or your workers believe you could not move or leave?
  • Did the agents mistreat anyone? If yes, how?

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